A-382-90
Ahmad Ali Zalzali (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: ZALZALI v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (C.A.)
Court of Appeal, Hugessen, MacGuigan and
Décary JJ.A.—Montréal, April 17, Ottawa, April
30, 1991.
Immigration — Refugee status — Lebanese national threat
ened by two contending militia groups Unable to avail
himself of protection of country as no effective government
Not necessary government be accomplice to persecution if
unable to afford protection from persecution in any part of
territory — Power of Court to review credibility finding where
gross error by Refugee Division in comprehending evidence.
This was an appeal from a decision of the Refugee Division
of the Immigration and Refugee Board rejecting the appellant's
claim to refugee status on the grounds that he had not present
ed evidence of the persecution alleged and that he was not a
credible witness.
The appellant is a national of Lebanon. He says that his
sympathies lie with the Lebanese Army, rather than with the
contending militias. The documentary evidence at the Refugee
Division hearing, and the appellant's own testimony, were to
the effect that the Hezbollah and Amal had both sought by
threats to force him to participate in their militias. At that
time, the national government exercised effective control over
no part of the country. Were the appellant to return to Leba-
non, both militias would regard him as a traitor. The Refugee
Division held that the appellant should have availed himself of
the protection of the Lebanese Army.
Held, the appeal should be allowed.
The Refugee Division questioned the appellant's credibility
because of its mistaken understanding that he had remained in
Lebanon for four months after receiving death threats, when in
fact he left two days later. That gross error in comprehending
the evidence empowered the Court to review the finding as to
credibility.
Under subparagraph 2(1)(a)(i) of the Immigration Act, a
person who is unable to avail himself of the protection of his
country of nationality has the same entitlement to refuge as has
a person who is unwilling, because of fear of persecution, to do
so. Here, the appellant was unable to seek the protection of his
government because there was no government to which to
resort. Where the claim is based on inability to benefit from the
protection of the state, the state need not participate in the
persecution which is feared. The persecution may emanate
from sections of the population against whom the state is
unable, for example because of civil war, to protect the
individual. Where there is no state involvement, the Refugee
Division must decide whether those persecuting the claimant
are doing so because of political opinions which he has or which
they attribute to him.
Persecution within the meaning of the Convention does not
exist if the state provides adequate protection somewhere
within its territory to which the individual can move. In this
case, there was no established authority able to furnish such
protection.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1)(a)(i) (as
am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1(2)).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Rajudeen v. Minister of Employment and Immigration
(1984), 55 N.R. 129 (F.C.A.); Canada (Attorney Gener
al) v. Ward, [1990] 2 F.C. 667; (1990), 67 D.L.R. (4th)
1; 10 Imm. L.R. (2d) 189; 108 N.R. 60 (C.A.);
Ovakimoglu v. Minister of Employment and Immigra
tion (1983), 52 N.R. 67 (F.C.A.).
REFERRED TO:
Ahmed v. Canada (Minister of Employment and Immi
gration) (1990), 12 Imm. L.R. (2d) 212 (F.C.A.); Suruj-
pal v. Minister of Employment and Immigration (1985),
60 N.R. 73 (F.C.A.); Minister of Employment and
Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.);
Salibian v. Canada (Minister of Employment and Immi
gration), [1990] 3 F.C. 250; (1990), 11 Imm. L.R. (2d)
165 (C.A.); Karnail Singh, 83-1189, decision dated
14/11/83, I.A.B., unreported; Ramkissoon, T84-9057,
decision dated 21/6/84, I.A.B., unreported; da Silva,
T86-9740, decision dated 10/12/86, I.A.B., unreported.
AUTHORS CITED
Hathaway, James C., The Law of Refugee Status,
Toronto: Butterworths, 1991.
Office of the United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Conven
tion and the 1967 Protocol relating to the Status of
Refugees, Geneva, 1979.
COUNSEL:
Denis Buron for appellant.
J. Granger for respondent.
SOLICITORS:
Saint-Pierre, Buron et ass., Montréal, for
appellant.
Deputy Attorney of Canada for respondent.
The following is the English version of the
reasons for judgment rendered by
DÉCARY J.A.: The appellant, a Lebanese na
tional, claims he was persecuted on account of his
nationality, political opinion and membership in a
particular social group and is accordingly claiming
refugee status. The Refugee Division dismissed his
application: hence the appeal before the Court.
There are two parts to the decision at issue.
First, the Refugee Division concluded that the
appellant had not presented evidence of the
grounds of persecution which he had alleged.
Second, reversing the usual order of things, the
Refugee Division concluded that the appellant was
not a credible witness.
In this Court the appellant challenged the
"credibility" part and the "political opinion"
aspect of the "grounds of persecution" part.
Credibility
One of the points used by the Refugee Division
as a basis for questioning the appellant's credibili
ty is the fact that he did not leave Lebanon until
"about four months" after receiving death threats.
The evidence disclosed, and counsel for the
respondent conceded this point, that the appellant
left Lebanon two days, not four months, after
receiving these threats. This is a gross error in the
assessment of the evidence, an error which clearly
had a decisive influence on the Refugee Division,
which made it twice. This type of error gives this
Court authority to review the non-credibility find
ing made by the Refugee Division.'
Persecution
The Refugee Division dismissed the appellant's
argument that he had been persecuted for his
political opinions as follows:
[TRANSLATION] As to his political opinions, the claimant
testified that he would like power to be returned to the Leba-
nese army. It is established that in order to claim refugee status
on this ground the political opinions must be known or attribut
ed to the claimant. He has never shown that the various militia,
' See Ahmed v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm. L.R. (2d) 212 (F.C.A.).
whether Amal or Hezbollah, know or attribute to the plaintiff
the political opinions relating to the Lebanese army. What he
did show was that each of the groups, Amal or Hezbollah,
accused the claimant of being a member of the other group, so
that he would participate in their group. The claimant obtained
protection from the Amal movement when he began cooperat
ing with them. The claimant never tried to obtain the protec
tion of the Lebanese army, with which his political opinions
were connected.
It appears from the documentary evidence and
the appellant's testimony that: (1) the Lebanese
government of national occupation exercised effec
tive control over no part of Lebanese territory at
the time of the incidents which led the appellant to
flee; (2) in reality, there were as many govern
ments as militias; (3) the appellant was
approached and threatened both by the Amal
militia and the Hezbollah militia; (4) if he had to
return to Lebanon, the appellant would be regard
ed as a traitor by both of these militias and
probably executed by one or the other.
In such circumstances can the appellant be
blamed, as the Refugee Division blamed him, for
not trying to obtain protection from the Lebanese
army? Can it be argued, as counsel for the
respondent did, that there could not possibly be
any persecution since the Lebanese government is
neither the agent of persecution nor an accomplice
of that agent? I do not think so.
The definition of a "Convention refugee" as
given in subsection 2(1) of the Immigration Act 2
requires a refugee status claimant who fears perse-
2 R.S.C., 1985, c. 1-2:
2. (1)
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a par
ticular social group or political opinion,
(i) is outside the country of the person's nationality and is
unable or, by reason of that fear, is unwilling to avail
himself of the protection of that country, or
(ii) not having a country of nationality, is outside the
country of the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention Refugee by virtue of
subsection (2) .... [My emphasis.]
cution to be unable or, by reason of that fear,
unwilling to avail himself of the protection of his
country of nationality. A person who is unable to
avail himself of the protection of a country is just
as eligible for refugee status as one who is
unwilling.
In most cases of claims for refugee status the
State, while it may not itself be the agent of
persecution, makes itself an accomplice by toler
ance or inertia. It is then possible to speak in terms
of persecution attributable to the State and to
conclude that the refugee claimant had good
reason to be unwilling to claim protection which a
State was in all likelihood not going to give him.
Accordingly in Rajudeen, 3 Surujpal 4 and
Satiacum 5 the Court considered cases in which a
refugee claimant, knowing or believing that the
State was itself the agent of persecution, that the
State was an accomplice or that the State was
closing its eyes to persecution perpetrated by per
sons for whom it was not formally responsible, was
unwilling to claim protection from the State
because he knew or believed that the State did not
wish to protect him. In Ward, 6 at page 680, Urie
J.A., summarizing the rules stated in Rajudeen
and Surujpal, concluded that "the involvement of
the State is a sine qua non where unwillingness to
avail himself of protection is the fact".
However, what is the situation when the refugee
status claimant is unable to claim his country's
protection? Is it also necessary then for the coun
try in question to be in some way a party to the
acts of persecution? In Ward, where the Court
was, I think for the first time, led to compare the
position of a refugee status claimant who is unwill
ing to claim his State's protection with that of a
claimant who is unable to do so, Urie J.A. said the
following, for the majority [at page 680]:
3 Rajudeen v. Minister of Employment and Immigration
(1984), 55 N.R. 129 (F.C.A.).
4 Surujpal v. Minister of Employment and Immigration
(1985), 60 N.R. 73 (F.C.A.).
5 Minister of Employment and Immigration v. Satiacum
(1989), 99 N.R. 171 (F.C.A.).
6 Canada (Attorney General) v. Ward, [1990] 2 F.C. 667
(C.A.), at pp. 693-697, leave to appeal granted by the Supreme
Court of Canada on November 8, 1990, [1990] 2 S.C.R. xii.
On the other hand, being "unable" to so avail himself
connotes, as I see it, quite literally that the claimant cannot,
because of his physical inability to do so, even seek out the
protection of his state. These imply circumstances over which
he has no control and is not a concept applicable in facts of this
case.
MacGuigan J.A., otherwise dissenting, said the
following [at page 6961:
It seems to me that the applicant is probably right that is
unable means literally unable, i.e., unable even to approach.
That, however, is where the comparison between
being unwilling and being unable stopped as, in the
view of the members of the Court, the claimant
was not in the position of being "unable" since in
practice he could "seek out the protection" of the
government (Urie J.A.) or "approach" it (Mac-
Guigan J.A.). There is no doubt that "unable"
applies in the case at bar, as the evidence estab
lished that the appellant was unable to seek the
protection of his government or even to approach it
for the simple and brutal reason that there was no
government to resort to.
One of the problems presented by the concept of
protection by the State is the fact that it may be
taken into account in determining whether there is
persecution within the meaning of the Convention
and that it necessarily must be taken into account
to determine whether a refugee status claimant is
in the position of someone who is unwilling, as in
Ward, or is unable, as in the case at bar. In Ward,
at page 680, Urie J.A. said it was important to
avoid confusing "the determination of persecution
and ineffective protection" and that "the two con
cepts must be addressed and satisfied independent
ly" but, if I understand his conclusion correctly, as
indicated at page 681, he was anxious to avoid as a
matter of fact having one (ineffective protection)
serve as a presumption in favour of the other
(persecution). I do not think he meant to say that
these two concepts could not be interconnected for
the purposes of interpreting the definition of a
refugee in law. In my view, to accurately define
what a refugee is it is important to examine the
wording as a whole and interpret the whole in light
of each of its component parts.
In any case, the circumstances in Ward are so
exceptional and have so little to do with the much
more general question now before the Court that I
would apply the rules arrived at by a majority of
the Court to the case at bar with the utmost
caution.
The essence of the question that arises in the
case at bar, when it is reduced to its simplest and
most practical form, is as follows: can there be
persecution within the meaning of the Convention
and the Immigration Act where there is no form of
guilt, complicity or participation by the State? I
consider that, in light of the wording of the defini
tion of a refugee, the judgments of this Court and
scholarly analysis both in Canada and abroad, this
question must be answered in the affirmative.
The definition of a "refugee" refers to the fear
"of persecution", without saying that this persecu
tion must be "by the government". This omission
seems to me to be extremely significant: I do not
see by what rule of interpretation the meaning of
the word "persecution" should be limited, especial
ly as the very objectives of the Immigration Act,
which incorporates this definition into Canadian
law, encourage the taking of a liberal and generous
approach (section 3 of the Act).
That is not all. As my brother Judges pointed
out in Ward, the natural meaning of the words "is
unable" assumes an objective inability on the part
of the claimant, and the fact that "is unable" is, in
contrast to "is unwilling", not qualified by "by
reason of that fear", seems to me to confirm that
the inability in question is governed by objective
criteria which can be verified independently of the
fear, experienced, and so independently of the acts
which prompted that fear and their perpetrators.
Seeing a connection of any kind between "is
unable" and complicity by the government would
be to misread the provision.
Apart from Ward, two judgments of this Court
require special mention. In Ovakimoglu, 7 the
Court referred the matter back to the Immigration
Appeal Board on the ground that, inter alia, it had
not taken into account the "lack of protection
available to him (the applicant), in common with
his fellow Armenians, by the authorities, from
harassment, both mental and physical, by Moslem
7 Ovakimoglu v. Minister of Employment and Immigration
(1983), 52 N.R. 67 (F.C.A.).
Turks, all because he and others were Armenian
Christians".$ There would appear to be an implicit
recognition here of the possibility of persecution by
someone other than the government when the
latter is unable to offer protection. In Rajudeen,
Stone J.A. said the following at page 135:
Obviously, an individual cannot be considered a "Convention
refugee" only because he has suffered in his homeland from the
outrageous behaviour of his fellow citizens. To my mind, in
order to satisfy the definition the persecution complained of
must have been committed or been condoned by the state itself
and consist either of conduct directed by the state toward the
individual or in it knowingly tolerating the behaviour of private
citizens, or refusing or being unable to protect the individual
from such behaviour. [My emphasis.]
In saying this he recognized that there can be
persecution within the meaning of the Convention
even if the reprehensible acts are those of fellow
nationals, when the government is unable to pro
tect the victim against what they are doing. There
is thus already in the case law of this Court, where
evidence is presented that a State cannot provide
the necessary protection, a move in the direction of
recognizing persecution which is not directly or
indirectly connected with the State.
There is support for this interpretation in the
Handbook on Procedures and Criteria for Deter
mining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of
Refugees: 9
65. Persecution is normally related to action by the authorities
of a country. It may also emanate from sections of the popula
tion that do not respect the standards established by the laws of
the country concerned. A case in point may be religious intoler
ance, amounting to persecution, in a country otherwise secular,
but where sizeable fractions of the population do not respect
the religious beliefs of their neighbours. Where serious dis
criminatory or other offensive acts are committed by the local
populace, they can be considered as persecution if they are
knowingly tolerated by the authorities, or if the authorities
refuse, or prove unable, to offer effective protection.
98. Being unable to avail himself of such protection implies
circumstances that are beyond the will of the person concerned.
There may, for example, be a state of war, civil war or other
grave disturbance, which prevents the country of nationality
from extending protection or makes such protection ineffective.
Protection by the country of nationality may also have been
8 Ibid, at p. 69.
9 Office of the United Nations High Commissioner for
Refugees, Geneva, September 1979, at pp. 17 and 23.
denied to the applicant. Such denial of protection may confirm
or strengthen the applicant's fear of persecution, and may
indeed be an element of persecution. [My emphasis.]
and it is that adopted by Professor Hathaway: 10
[at page 125] Insofar as it is established that meaningful
national protection is available to the claimant, a fear of
persecution cannot be said to exist. This rule derives from the
primary status accorded to the municipal relationship between
an individual and her state, and the principle that international
human rights law is appropriately invoked only when a state
will not or cannot comply with its classical duty to defend the
interests of its citizenry. Andrew Shacknove has helpfully
phrased this principle in terms of a breakdown of the protection
to be expected of the minimally legitimate state:
Persecution is but one manifestation of the broader phenome
non: the absence of state protection of the citizen's basic
needs. It is this absence of state protection which constitutes
the full and complete negation of society and the basis of
refugeehood.
[at pages 127-128] Beyond these acts of commission carried
out by entities with which the state is formally or implicitly
linked, persecution may also consist of either the failure or
inability of a government effectively to protect the basic human
rights of its populace. Specifically, there is a failure of protec
tion where a government is unwilling to defend citizens against
private harm, as well as in situations of objective inability to
provide meaningful protection. This is a somewhat more com
plex notion, derived from the principle that the legitimacy of a
government is inextricably linked to the sufficiency of the
protection it affords its citizenry. As argued and accepted in the
decision of the French Conseil d'Etat in Esshak Dankha:
... the existence and the authority of the State are conceived
and justified on the grounds that it is the means by which
members of the national community are protected from
aggression, whether at the hands of fellow citizens, or from
forces external to the State. (Unofficial translation)
Thus, the state which ignores or is unable to respond to
legitimate expectations of protection fails to comply with its
most basic duty, thereby raising the prospect of a need for
surrogate protection. Intention to harm on the part of the state
is irrelevant: whether as the result of commission, omission, or
incapacity, it remains that people are denied access to basic
guarantees of human dignity, and therefore merit protection
through refugee law.
[at pages 132-133] The duty in Canadian law to assess the
sufficiency of state protection on the basis of the de facto
viability of effective recourse to national authorities, rather
than looking to specific forms of active culpability, is thus fully
consistent with the general international trend.
1 ° James C. Hathaway, The Law of Refugee Status
(Toronto: Butterworths, 1991).
This review of the wording of the definition, the
judgments of the Court and scholarly commentary
leads me to adopt in a different context the obser
vations of MacGuigan J.A. in Ward, at page 698:
No doubt this construction will make eligible for admission to
Canada claimants from strife-torn countries whose problems
arise, not from their nominal governments, but from various
warring factions, but I cannot think that this is contrary to
"Canada's international legal obligations with respect to
refugees and ... its humanitarian tradition with respect to the
displaced and the persecuted" [paragraph 3(g) of the Act].
There are probably several reasons beyond a
person's control why he might be unable to claim
the protection of a State, one of them being, and
this is obvious, the non-existence of a government
to which that person may resort. There are situa
tions, and the case at bar is one of them, in which
the political and military circumstances in a coun
try at a given time are such that it is simply
impossible to speak of a government with control
of the territory and able to provide effective pro
tection. Just as a state of civil war is no obstacle to
an application for refugee status, " so the non
existence of a government equally can be no ob
stacle. The position of the respondent in the case at
bar would lead directly to the absurd result that
the greater the chaos in a given country, the less
acts of persecution could be capable of founding
an application for refugee status.
I do not have to decide here what is meant by
"government". I know that in principle persecution
in a given region will not be persecution within the
" See Salibian v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 250 (C.A.).
meaning of the Convention if the government of
the country is capable of providing the necessary
protection elsewhere in its territory, and if it may
be reasonably expected that, taking into account
all the circumstances, victims will move to that
part of the territory where they will be protected. 12
I also know that the Convention speaks of protec
tion of the "country of which the person is a
national", that in the passages from his text to
which I have referred Professor Hathaway speaks
rather of the "legitimate government", and that in
Ward MacGuigan J.A. spoke of "nominal govern
ments". The "country", the "national govern
ment", the "legitimate government", the "nominal
government" will probably vary depending on the
circumstances and the evidence and it would be
presumptuous to attempt to give a general defini
tion. I will simply note here that I do not rule out
the possibility that there may be several estab
lished authorities in the same country which are
each able to provide protection in the part of the
territory controlled by them, protection which may
be adequate though not necessarily perfect.
The conclusion at which I have arrived carries
with it an obligation to alter certain established
rules in other circumstances. Where no established
authority exists, it will not be possible to apply in
their entirety the rules stated with regard to perse
cution for political opinions, since there is strictly
speaking no State to be aware of the claimant's
political opinions or attribute any to him. In that
case, the first instance tribunal and the Refugee
Division will have to decide, in light of all the
circumstances presented, whether those who are
persecuting the refugee status claimant are doing
so on account of political opinions he has or which
they attribute to him.
In the case at bar the Refugee Division blamed
the appellant for not trying to obtain protection
12 The Immigration Appeal Board has held to this effect on
several occasions: see Karnail Singh, Docket no: 83-1189,
C.L.1.C. No. 62.4, November 14, 1983; Jainarine Jerome
Ramkissoon, T84-9057, June 21, 1984; Bento Rodrigues da
Silva, T86-9740, December 10, 1986; Hathaway, supra, note
10, at p. 134; Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and
the 1967 Protocol relating to the Status of Refugees, supra,
note 9, at para. 91.
from the Lebanese army. The evidence is that no
established authority was able to provide the
appellant with the desired protection. In the cir
cumstances, therefore, the appellant was unable to
avail himself of the protection of his country, and
far from disqualifying him, this, on the contrary
enabled him to meet one of the conditions imposed
in the definition of a refugee.
In view of the decisive error of fact made by the
Refugee Division in weighing the appellant's credi
bility and the error of law made in interpreting the
definition of a refugee, I would allow the appeal,
reverse the decision of the Refugee Division and
refer the matter back to it for a re-hearing in
accordance with these reasons.
HUGESSEN J.A.: I concur.
MACGUIGAN J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.